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Reviewing the following Full Court decisions reinforces my view that arbitrations are simply a more viable time and cost saving dispute resolution forum in financial matters.

Reviewing the following Full Court decisions reinforces my view that arbitrations are simply a more viable time and cost saving dispute resolution forum in financial matters particularly when you pause to consider the timeline in the reported decision of Wallis & Manning and the impact of a delayed judgment in Rankin.

The Wallis decision also reflects upon the value of “comparative case” evaluations in determining ranges of outcome. In the mediation context, sitting on a concept of “inside a range” offer can present difficulties and ultimately impasses if a client’s interests aren’t given due priority. (See my previous article about “The Ambit Position” where tips about interest based negotiations apply equally here too)

The timeline in this matter is worth noting as the lapse between final submissions and decision was a matter raised upon appeal. Proceedings were instituted in 2011 and a trial was conducted in 2012 with reasons being delivered on 29 September 2015. Final orders made 4 November 2015. The appeal, before the Full Court, was heard on 4 August 2016 with the decision delivered on 10 February 2017. Assuming the matter was filed early 2011 (by reference to the filing number) this amounts to a 6 year timeline for final determination.

About the utility in using previous cases, particularly trial decisions, as comparative cases the Full Court cited with approval Petruski & Balewa noting such exercise to be unhelpful as a trial judge is to consider the particular circumstances of the case before him or her in determining whether any and if so what order should be made. What another judge may do in another case on the basis of the facts in that case can rarely if ever determine what is done in the case at hand. The Full Court also referred to the recent landmark case of Barbaro and added;

While recognising the fact that no two cases are precisely the same, we are of the view that comparable cases can, and perhaps should far more often, be used so as to inform, relevantly, the assessment of contributions within s 79.

The word “comparable” is used advisedly. The search is not for “some sort of tariff let alone an appropriate upper and lower end of the range of orders which may be made”. Nor is it a search for the “right” or “correct” result: the very wide discretion inherent in s 79 is antithetical to both. The search is for comparability – for “what has been done in other (more or less) comparable cases” – with consistency as its aim.

It is nevertheless also important to recognise, as Gibbs CJ did in Mallet that earlier decisions:

... do no more than provide a guide; they cannot put fetters on the discretionary power which the Parliament has left largely unfettered. It is necessary for the court, in each case, after having had regard to the matters which the Act requires it to consider, to do what is just and equitable in all the circumstances of the particular case.

This appeal concerned the wife’s application in the appeal to restrain a solicitor (and his firm) from acting for the husband in circumstances where a secretary for the husband’s solicitors had previously been employed by the wife’s solicitors, it being alleged that the secretary may have some confidential information of the husband. Her Honour, Justice May therefore considered the Full Court’s previous decision in McMillan and McMillan [2000] FamCA 1046 where it was accepted that the degree of proof requisite to support such a restraint was “…..(the complainant) swears that she has conveyed confidential information to the solicitors and that she believes, not unreasonably, that that information may be used against her, or at least to her disadvantage, in these current proceedings.”

In refusing the application to restrain, Her Honour observed that there was no evidence that relevant confidential information had been given to the secretary, mere access to a file is not enough. An applicant must identify the nature of the information received or likely to have been received by the secretary. In the absence of any evidence about that matter it could not be inferred that the secretary had confidential information.

Britt is an important Full Court decision in this era of renewed scrutiny of domestic violence and it’s insidious interplay in property disputes within the confines of a Kennon argument. In the appeal the wife contended the trial judge had rejected tranches of her evidence with regard to domestic violence during the relationship. The seminal allegations unfortunately are similar to those types of allegations regularly seen drafted into court documents (see paragraph 26) - lacking in particulars or specifics.

However, in determining that the trial judge had erred in excluding the evidence, the Full Court found that the judge had confused “admissibility” with “weight” (see section 55 and 56 of the Evidence Act).

54 Evidence is commonly given in general terms and when taken in conjunction with other evidence it can be tolerably clear what is meant. One would not expect any person who had been in a long relationship to remember the exact nature and frequency of recurring events throughout that relationship, let alone specific dates.

55 Ultimately, the court will need to deal with that evidence, in the light of all of the material before it, in order to determine whether particular conclusions or inferences can be drawn. At that stage, the weight to be given to the evidence is critical. However, that occurs at the end of the hearing. It does not occur early in the hearing and not when dealing with objections to evidence.

…/….

74. The respondent submitted that the appellant’s evidence was not relevant to an issue because even if it was evidence of family violence, the appellant had called no evidence to suggest that the violence had made her contributions more onerous. This submission overlooks the obvious point that the court can infer from appropriate evidence that there was a nexus between the conduct and the relevant contributions.

This appeal is casenoted to highlight the hidden costs of delayed judgments. In the matter before the trial judge the parties had consented to a superannuation splitting order splitting the parties superannuation equally between them which resulted in a base amount allocated to the wife of $250,000.00. The matter was heard in May 2015 however the decision was not handed down until 29 February 2016.

The husband argued on appeal that in circumstances of significant delay, the making of orders which are just and equitable within the meaning of s 79(2) required that the learned primary judge should divide the parties’ superannuation interests by reference to a percentage of the parties’ total superannuation entitlements at the date of the judgment. He sought to rely upon changes to the values of the superannuation entitlements. In refusing leave to adduce further evidence and rejecting this ground the Full Court stated;

It is self-evident that a person’s interest in a superannuation fund may change over time as the underlying assets vary in value from time to time and produce varying income. How such an easily anticipated variation would lead to a consent order splitting superannuation interests being set aside on appeal is entirely obscure.

First, the matter was before the Court on 22 December 2015, approximately two months before judgment. The husband did not raise this issue. It is therefore difficult to assert that the husband’s consent to the superannuation order had, in some way, been vitiated by delay.

Secondly, there is no over-arching obligation on the court to achieve a just and equitable outcome as to superannuation contrary to the parties’ wishes (see Russo & Wylie (2016) FLC 93-747 at [54]).

Finally, the primary judge merely acceded to the parties’ wishes. It cannot be said that in doing so her Honour fell into error. Both parties were legally represented, which was a matter on which her Honour could rely (Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 per Mason CJ and Deane J at [15], Brennan J at [11] and Dawson J at [25]). It was not suggested that the agreement that led to the consent order was in question, but, if it was, that would need to be raised in an application to set aside the orders and not on appeal.